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2010 DIGILAW 2342 (PNJ)

Balkar Singh v. Ram Sarup

2010-08-16

ALOK SINGH

body2010
Judgment Alok Singh, J. 1. Present petition is filed challenging the judgment dated 1.6.2009 passed by learned District Judge, Jind, whereby the learned Appellate Court dismissed the application moved by the appellants/petitioners to recall the order dated 17.12.2008, whereby the appeal was withdrawn by the appellants. 2. Brief facts of the present case are that civil suit, Suit No.48 of 12.2.2004, was filed by the plaintiffs/appellants/present petitioners against the defendants/present respondents for declaration declaring that rapat was illegally sanctioned, adversely affecting rights of the plaintiffs as residents of the Village and rights of the defendant No.1- Gram Panchayat and land in dispute was earmarked for common use of the residents of the village; suit was permitted to be filed under Order 1 Rule 8 C.P.C.; suit was dismissed vide judgment dated 7.8.2008; judgment dated 7.8.2008 was challenged in appeal before the learned District Judge, Jind; learned Counsel appearing for the appellants made a statement on 17.12.2008 before the learned Appellate Court to the effect that appellants did not wish to continue the appeal and same be dismissed as withdrawn; on the statement made by learned Counsel for the appellants, appeal was dismissed as withdrawn; thereafter, application under Section 151 C.P.C. was moved by the appellants to the effect that the then learned Counsel appearing for the appellants had wrongly withdrawn the appeal, hence, so called withdrawal by the earlier Counsel on 17.12.2008 be permitted to be withdrawn and appeal be heard on merits; the application moved by the appellants/petitioners was also dismissed vide impugned order dated 1.6.2009; hence, the present revision petition. 3. In the present petition, the very important question of law arises for consideration is as to whether a suit or appeal filed under Order 1 Rule 8 C.P.C. in representative capacity can be withdrawn without following the procedure given under Sub-rule (4) of Rule 8 of Order 1 C.P.C. 4. Order 1 Rule 8 C.P.C. is reproduced herein as under:- "8. Order 1 Rule 8 C.P.C. is reproduced herein as under:- "8. One person may sue or defend on behalf of all in same interest - (1) Where there are numerous persons having the same interest in one suit,: (a) one or more of such persons may, with the permission of the Court, sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested; (b) the Court may direct that one or more of such persons may sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested. (2) The Court shall, in every case where a permission or direction is given under sub-rule (1), at the plaintiffs expense, give notice of the institution of the suit to all persons so interested, either by personal service, or, where, by reason of the number of persons or any other cause, such service is not reasonably practicable, by public advertisement, as the Court in each case may direct. (3) Any person on whose behalf, or for whose benefit, a suit is instituted, or defended, under sub-rule(l), may apply to the Court to be made a party to such suit. (4) No part of the claim in any such suit shall be abandoned under sub-rule (1), and no such suit shall be withdrawn under sub-rule (3) of rule 1 of Order XXIII, and no agreement, compromise or satisfaction shall be recorded in any such suit under rule 3 of that Order, unless the Court has given, at the plaintiffs expense, notice to all persons so interested in the manner specified in subrule (2). (5) Where any person suing or defending in any such suit does not proceed with due diligence in the suit or defence, the Court may substitute in his place any other person having the same interest in the suit. (6) A decree passed in a suit under this rule shall be binding on all persons on whose behalf, or for whose benefit, the suit is instituted, or defended, as the case may be. (6) A decree passed in a suit under this rule shall be binding on all persons on whose behalf, or for whose benefit, the suit is instituted, or defended, as the case may be. Explanation:- For the purpose of determining whether the persons who sue or are sued, or defend, have the same interest in one suit, it is not necessary to establish that such persons have the same cause of action as the persons on whose behalf, or for whose benefit, they sue or are sued, or defend the suit, as the case may be." 5 In the opinion of this Court, as per Sub-rule (4) of Rule 8 of Order 1 C.P.C, no part of the suit can be abandoned or can be withdrawn under sub-rule (3) of rule 1 of Order 23 or settled or compromised unless the Court has given notice to all the persons interested in the manner specified in sub-rule (2). Sub-rule (5) of Rule 8 of Order 1 C.P.C. also provides that suit filed under Order 1 Rule 8 C.P.C. shall not be dismissed in default or shall not be decreed exparte and in the event of absence of plaintiff or defendant, as the case may Be, Court shall substitute such persons as the Court deems fit in place of plaintiff or defendant, who is absent, as the case may be. 6. Perusal of the record does not show that any notice was ever issued to the residents of the village in whose interest the suit and appeal was filed, as required by Sub-rule(4) read with sub-rule(2) of Rule 8 of Order 1 C.P.C. 7. In view of the above legal position, order impugned can not be sustained. Learned Appellate Court should have recalled the order dated 17.12.2008 and should have restored the appeal for decision on merits. 8. Hence, the present petition is allowed. Order impugned dated 1.6.2009 as well as order dated 17.12.2008 dismissing the appeal as withdrawn are quashed. Appeal is restored to its original number. 9. Parties are directed to appear before the learned District Judge on 13.9.2010. Learned District Judge is directed to decide the appeal on merit in accordance with law. No order as to costs.